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FOIA Facts: Are Ombudsman The Answer?

By Scott A. Hodes, Published on April 24, 2007

The current trend in Disclosure Legislation is towards appointing an ombudsman to referee disputes between requester and the government agency. Pending federal FOIA amendments in the House of Representatives would set up an Ombudsman’s Office within the National Archives, while the Senate FOIA amendments would put the Ombudsman’s Office in the Administrative Conference of the United States. Both bills would have them attempt to mediate disputes between requesters and federal agencies. States such as Tennessee and Pennsylvania are also looking into having an office in that state serve as the mediator in public records disputes between requesters and state agencies.

Anything intended to settle disputes between requesters and the government, is theoretically, a good thing. However, there are pros and cons to setting up an ombudsman’s office—and the overall scheme may not be the answer in resolving the number of disputes that arise in disclosure of public records.

The pros to this scheme are that initially it provides an alternative to FOIA litigation. Litigation is both costly and may take years to resolve. Once a requester is invested in the litigation, they may not wish to resolve the matter until it reaches some type of conclusion. An office that attempts to mediate the dispute, after the administrative process has been exhausted may help cut down on litigation and provide requesters relief without having to file suit. An example of this is a requester seeks information on “subject A.” The agency denies the request—and provides little detail as to why the request was denied both initially and on appeal. However, the requester gets the mediator involved, and tells him he just doesn’t understand the agency’s reasoning behind the denial. If the mediator can help explain the denial, or convince the agency that some of the records may be released, both parties can walk away happy without involving the courts. This positive scenario is the one legislators hope to see in the proposed amendments.

Another pro to an ombudsman is that an office with professionals trained in FOIA law could be a voice of reason to agencies that often withhold documents for purposes not allowed under FOIA law. A third party office that is well versed in FOIA law may be enough to convince these agencies that their rationale for non disclosure isn’t appropriate and get the information released—without resorting to the aforementioned expensive and timely litigation.

There are cons to the ombudsman schemes. It could cause an extremely slow process to move even slower. Rather than file a lawsuit and seek a hearing before a court, this intermediate step may lengthen the time before a requester gets a final determination—and if the requester is correct in the assertion that the documents are releasable, the slow pace of the process will only worsen a bad situation.

Furthermore, even if the ombudsman knows that the requester is right, it may not be able to order the agency to release the records. This would only frustrate requesters, and I would imagine almost dare them to file suit. Additionally, it is not clear how or if the ombudsman’s opinion would be allowed to be part of a court proceeding.

Finally, the entire scheme may do nothing more than to add another layer of bureaucracy to the federal government. If the process isn’t designed to be lean, quick and results oriented, it may do nothing more than add more to the federal deficit. Additionally, the pending bills that set up the ombsbudsman do not finance them—but that’s another article.

Setting up a third party within either the federal or state government that is supposed to help mediate disclosure could be a very positive step for requesters. However, only time will tell if that idea can be properly executed to the benefit of requesters.